Prosecutors are seeking a $1-million fine against a construction company that has become the first firm in Ontario history with a conviction for criminal negligence causing death.

Four people were killed, and one critically injured, when a scaffold broke 13 floors above the ground at a Kipling Ave. apartment building on Dec. 24, 2009.

By:Tony Van AlphenStaff Reporter, Published on Thu Jun 21 2012

Prosecutors are seeking a $1-million fine against a construction company that has become the first firm in Ontario history with a conviction for criminal negligence causing death in a shocking scaffold tragedy.

Sentencing submissions from Crown prosecutors and defence lawyers will continue next week in Old City Hall court as a result of an unprecedented plea and admissions by Metron Construction in the deaths of four workers.

But prosecutors have dropped charges of criminal negligence causing death against Joel Swartz, Metron’s owner, president and sole director, because they believed there was no reasonable chance of conviction.

It means Swartz won’t face any jail time, a disappointment for labour advocates who have pressed for significant time behind bars for parties responsible for the deaths.

Four workers died and another employee suffered serious injuries when their swing stage scaffold collapsed and plunged 13 storeys during construction repairs at a Kipling Ave. apartment building in Etobicoke on Christmas Eve, 2009.

It was the worst construction accident in more than half a century in Toronto and triggered a provincial review and amendments to the Occupational Health and Safety Act to increase protection for workers and reduce accidents.

Although the Crown has dropped the criminal charges against him, Swartz pleaded guilty to four breaches of the act late last week. Crown and defence lawyers have filed a joint submission for fines of $22,500 on each count but Justice Robert Bigelow must still approve the penalties.

Lawyers for Swartz — who did not appear in court — entered guilty pleas on his behalf on two counts of failing to take reasonable care to ensure a worker using a fall protection system received adequate training, and not keeping training records under the safety act.

Furthermore, he pleaded guilty to one count of not taking reasonable care to ensure a suspended scaffold was maintained properly to protect a worker’s safety and another count of failing to comply with all aspects of construction regulations.

A preliminary hearing has also started for Vadim Kazenelson, a senior Metron officer and site project manager at the time of the accident. He faces charges of criminal negligence causing death and could end up in jail if the court convicts him.

Ann Morgan, a prosecutor for the Ministry of the Attorney General, is asking for a $1-million fine for the workplace safety violations. Defence lawyers must also make submissions regarding the size of the penalty and the ability of Metron to pay. It is unclear how a fine would affect Swartz personally.

The 12-metre-long scaffold floor at the highrise building broke near the middle after six men boarded it on the way down at the end of the work day. Four of them did not have lifelines, fell to the ground and died. One of them who was not secured properly by a lifeline survived his fall. A sixth employee had the proper lifeline.

In an agreed statement of facts, the Crown and Metron said a supervisor — and therefore the construction firm — failed to take reasonable steps to prevent bodily harm and death by directing and/or permitting six workers to work on a scaffold with some construction materials when he knew or should have known it was unsafe.

The statement also said supervisor Fayzullo Fazilov, who died in the accident, also directed the workers to the scaffold knowing that only two lifelines were available.

It added Fazilov permitted employees under the influence of drugs to work on the project. Toxicology analysis determined that three of the four people, including Fazilov, had marijuana in their systems from recent ingestion.

“Metron’s plea is based exclusively on the acts and omissions of Fazilov, which render Metron a party to the offence of criminal negligence causing death pursuant to the Criminal Code of Canada,” the agreed statement noted.

It also said a forensic examination of the swing stage scaffold indicated a significant cause of the collapse was defective design and welding by the manufacturer.

The scaffold could hold 1,800 kilograms if properly designed which was more than the weight at the time of the collapse, the statement added.

The Ministry of Labour also charged Swing N’ Scaff, which supplied the scaffold to Metron, with violating the health and safety act but there has been no judgment in that case yet. Prosecutors have dropped criminal negligence charges against the firm

The Ontario Federation of Labour, which has pushed for more prosecution of corporate executives when workers die on the job, said someone should go to jail in the scaffold case.

“How much worse does it have to be when four workers lose their lives and still no one goes to jail,” said federation president Sid Ryan. “It ticks me off that people like the ones in this case get out from under the full weight of the law.”

Ottawa amended the Criminal Code in 2004 to impose criminal liability and possible serious penalties for companies and executives when firms are negligent in enforcing workplace safety laws that result in injuries or death. The Westray coal mining disaster that killed 26 workers in 1992 sparked the changes.

Beyond the criminal charges, one of the survivors in the scaffold collapse has sued Metron, Swing N’ Scaff, the apartment building owners and the Ministry of Labour in civil court for more than $16 million. Fazilov’s estate has also filed a claim.

The claims, which have not been proven in court, allege the men received improper training and inadequate safety gear and the scaffold was faulty.